R v Walters
[2016] ACTSC 336
•17 November 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Walters |
Citation: | [2016] ACTSC 336 |
Hearing Dates: | 16 November 2016 |
DecisionDate: | 17 November 2016 |
Before: | Elkaim J |
Decision: | (i) The accused is found not guilty of the offence of possessing a prohibited firearm whilst unauthorised. (ii) The accused is found guilty of the related summary offence of unauthorised possession of stolen property in contravention of s 324(1) of the Criminal Code 2002 (ACT). |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – verdict – trial by judge alone – possess a prohibited firearm whilst unauthorised – DNA evidence – s 42(a)(iii) Firearms Act 1996 (ACT) – s 11(1)(a) Firearms Act 1996 (ACT) – evidential burden on the accused |
Legislation Cited: | Criminal Code 2002 (ACT), ss 58(7), 60, 324(1) Firearms Act1996 (ACT), s 11(1)(a) |
Cases Cited: | R v Hill [2012] ACTSC 121; 266 FLR 1 |
Parties: | The Queen (Crown) Brendon Walters (Accused) |
Representation: | Counsel Ms S McFarland (Crown) Ms L Taylor (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 71 of 2016; SCC 72 of 2016 |
ELKAIM J:
Introduction
The accused has pleaded not guilty to the single count in the indictment dated 9 November 2016.
In accordance with s 68B of the Supreme Court Act1933 (ACT), the accused elected to be tried by a judge alone.
The charge facing the accused is:
That on 20 September 2015 at Canberra, the accused possessed a prohibited firearm and was not authorised by a licence, permit or otherwise by the Firearms Act 1996 (ACT) to possess the firearm.
The offence is alleged to have occurred on 20 September 2015. On the morning of that day the accused was driving on Northbourne Avenue, in the suburb of Turner, when he was involved in a single vehicle collision. It is alleged he fled the scene after the accident.
A police search of the vehicle discovered a modified Winchester .22 rifle. A bayonet was also found.
The vehicle was a Nissan Pulsar owned by a Ms Sarah Bremner.
The collision was said to have occurred after the vehicle crossed an intersection against a red traffic light and then collided with a traffic light.
Before examining the evidence it is necessary to state the legal principles that I must apply before arriving at a verdict.
The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.
The prosecution does not have to prove the truth of each fact that is asserted in its case. However it must prove each legal element of the charge beyond reasonable doubt.
The facts that I find must be based on the evidence, that is the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.
The elements of the offence are:
(a)The accused possessed a firearm.
(b)The firearm was a prohibited firearm.
(c)The accused was reckless as to whether or not the firearm was prohibited.
(d)The accused was not authorised by a licence, permit or otherwise under the Firearms Act1996 (ACT) to possess the firearm.
(e)The accused was reckless as to whether or not he was authorised by a licence, permit or otherwise under the Firearms Act1996 (ACT) to possess the firearm.
At the commencement of the hearing I was informed that the issues were very limited. Counsel for the accused said the only issue was whether or not the accused possessed the firearm. There was no issue that the accused was the driver and sole occupant of the vehicle; there was no issue that the firearm was found in the vehicle; there was no issue that the firearm was a prohibited firearm and there was no issue that the accused decamped from the scene following the accident.
Counsel for the accused, in a brief opening address, informed me that the accused would rely on s 11(1)(a) of the Firearms Act 1996 (ACT). She pointed out that under s 58(7) of the Criminal Code2002 (ACT) there was an evidentiary burden on the accused to raise the issue that he did not know the gun was in the vehicle.
Evidence called by the parties
The first witness called by the Crown was Ms Sarah Bremner. She is a good friend of the accused. She identified the vehicle shown in Exhibit B (Tab 5) as having been owned by her. Unless otherwise stated all of the numbered photographs referred to are in Tab 5 of Exhibit B.
She said that she had owned the vehicle since about 2013. About 12 months before the vehicle was involved in the accident the keys and ‘beepers’ needed to operate it had been lost. As a result, a friend carried out some alterations on the starting mechanism so that the key was not necessary. The vehicle could be turned on by the simple insertion of any key, or perhaps even a nail file. The state of the ignition can be seen in photographs 9 and 10 in Tab 5.
Following the alterations it was Ms Bremner’s practice to lock all the doors, besides the driver’s door, from the inside and then leave the driver’s door unlocked. She said the altered ignition area could be seen from outside the vehicle as could the button lock mechanisms on the doors. In other words, a person walking past the vehicle could easily see that the driver’s door was unlocked and the ignition was not in its original state.
Ms Bremner said that her partner in September 2015 was a Mr Alex Baudinette. He used the vehicle from time to time with her permission. The accused also used it by arrangement with Mr Baudinette.
On the morning of Thursday, 17 September 2015 Ms Bremner noticed that the vehicle was missing from her front lawn. She telephoned Mr Baudinette at about 9:30am. She could not get hold of him initially so she left a voicemail message. He later told her that he had the vehicle. She did not see the vehicle until the early hours of the next Sunday.
Ms Bremner said that the gun in the photographs in Tab 5 was not hers, she had not placed it in the vehicle and she had never seen it before.
Mr Baudinette gave evidence. He confirmed that he was Ms Bremner’s partner. He further confirmed the modifications to the vehicle. He said he believed that he had lent the vehicle to the accused on the Thursday before he was arrested. He was arrested on Sunday, 20 September 2015.
Mr Baudinette said he was a friend of the accused, they mixed in the same social circle and it was possible the accused had seen him taking drugs. He said his use of the drugs at the time may have made some of his recollections a little vague.
Mr Baudinette denied any knowledge of the gun. He said he had never seen the accused handling guns. He confirmed that some of the items found in the vehicle may have belonged to him.
Mr Andrew Preston gave evidence. He is a forensic biologist who examined the results of DNA swabs taken from the gun. His expertise was not challenged.
Exhibit C is Mr Preston’s report. Exhibit D is a photograph of the gun. The green dots indicate the metal areas from which identifiable DNA was obtained. The DNA profiles were found on the wooden sections of the gun but they could not be separated to allow individual identification.
In relation to the identifiable DNA, Mr Preston’s conclusion was that there was “moderately strong support for the proposition that the major component of the DNA profile obtained came from Walters.”
The phrase “moderately strong” is part of a verbal scale which can be seen at page 10 of the report. Under cross-examination Mr Preston agreed that the result was “not a strong result”. There was not a complete match. Only four markers out of 21 showed the necessary match, one being a gender indicator.
Mr Preston said that DNA could be transferred either by direct handling or through secondary transfer. He said that he could not exclude the possibility that the accused’s DNA on the gun had ‘arrived’ by secondary transfer.
Senior Constable McVicar added to the evidence contained in his statement (Exhibit B Tab 3) primarily by drawing on photographs 15 and 16 depicting the parts of the gun that were visible after the plastic bag was removed and also visible when the front passenger door was opened. He said he first saw the gun when he opened the front passenger door.
The accused gave evidence. He was not obliged to do so and his giving of evidence does not amount to any admission on his part about the strength of the Crown case against him. Having entered the witness box however, I am entitled to treat his evidence in the same way as that of any other witness.
In this regard I have approached the evidence of all of the witnesses on the basis that it is open to me to accept some of their evidence and reject other parts. I should add however that as far as the Crown witnesses were concerned, no issues of credit arose.
The accused said that he had borrowed the vehicle in order to transport some personal belongings from an address in Holt to his mother’s home where he usually lived. He resided from time to time at the address in Holt where he obtained illicit drugs.
The accused said that he made three or four trips over the period he had the vehicle in order to transport his belongings. On the occasion that he had the accident he had loaded the vehicle in a hurry and had thrown a black plastic bag, which can be seen in photograph 15, into the back of the vehicle. He accepted that in order to have done so he would have had to place his head into the vehicle. Nevertheless he said he did not see the gun. He said he had no knowledge of the gun and it was not his.
He did say that he had handled one or two guns at the premises in Holt one or two weeks earlier. They had been shown around by a person who had come to the house to obtain drugs. The gun or guns were not shortened firearms.
The accused said he planned to take the vehicle back to its owner before Monday because he thought it might be needed by her to take her children to school. (She has a daughter).
The accused said that when the accident occurred he wasn’t sure if he had fallen asleep or had become unconscious as a result of the accident. I note that Mr Angelos, a witness to the accident, estimated that the vehicle had been travelling at “somewhere between 60 and 80 km/h” when the accident occurred (Exhibit B, Tab 1, paragraph 5). This is a substantial speed and, as can be seen from the photographs of the damage to the vehicle (for example photograph 2), the impact would have been equally substantial. Neither party seemed to consider the possible effect this would have had on the movement of the gun assuming it lay beneath the front passenger seat. In other words, in my view, it cannot be said that the view of the gun open to Senior Constable McVicar was the same view as would have been available to the accused when he placed his bag in the vehicle.
The following questions and answers occurred during examination in chief:
MS TAYLOR: Was there any agreement about when you would return the car that you can remember?
MR WALTERS: I had planned on taking it back for the Monday because from the perspective I got, they would need to use it to drop the kids off at school and Alex’s car was getting fixed or something.
MS TAYLOR: And when you were driving it when the collision occurred, where were you off to?
MR WALTERS: To drop it off.
The passage just quoted was of some concern to me. I will return to it below.
The accused said that he left the scene of the accident because he was anxious not to be caught with illegal drugs (‘ice’) that were in a packet on the back seat behind the driver’s seat. He therefore took the packet and left the scene. He has since pleaded guilty to offences concerning his driving and leaving the scene of an accident.
Notwithstanding what was said by the Crown when opening the case, no questions were put to the accused suggesting any consciousness of guilt relating to the gun in his fleeing from the accident.
The accused described the house in Holt as a place where he bought and used drugs. The drugs were ‘ice’. He was ‘coming down’ from an overuse of the drug when the accident occurred.
Returning to his evidence the accused said that when he had loaded the vehicle he had used the rear driver’s side door because the passenger doors were locked. This is consistent with the earlier evidence about the state of the locking mechanisms in the motor vehicle.
Consideration
There is no evidence specifically linking the accused to the gun at any time prior to him entering the motor vehicle on the day of the accident. In order to prove possession the Crown relies on the known presence of the gun in the vehicle, the vehicle being under the sole control of the accused and the presence of his DNA on the gun. It is essential to the case as put by the Crown that the accused saw the gun in the vehicle before he drove off. As stated above, there is no part of the Crown case that suggests any earlier contact or observation of the gun.
The accused accepts that if I were satisfied beyond reasonable doubt that the Crown had established that he had seen the gun when loading the vehicle with his own possessions then I would find a guilty verdict.
The accused however says that the Crown has not established that he saw the gun and therefore the prosecution must fail.
The accused therefore relies upon s 11(1) of the Firearms Act 1996 (ACT) which states:
(1)For this Act, a person is not taken to have possession of a firearm only because the firearm is at premises owned, leased or occupied by the person if—
(a) the person does not know that the firearm is at the premises; or
(b) someone else who is authorised to possess the firearm—
(i)is also at the premises; or
(ii)has the care, control or management of the firearm; or
(c) someone else who is not authorised to possess the firearm has the care, control or management of the firearm; or
(d) the trier of fact is otherwise satisfied that the person was not in possession of the firearm.
The accused further says that, pursuant to s 58(1) of the Criminal Code 2002 (ACT) there is an evidential burden upon him to establish a reasonable possibility that he had no knowledge of the presence of the gun in the vehicle and that having done so the onus shifts back to the Crown to establish his knowledge beyond reasonable doubt. The Crown accepted this statement as a matter of correct law, referring me to R v Hill [2012] ACTSC 121; 266 FLR 1. The evidentiary onus is discharged on a balance of probabilities (s 60 of the Criminal Code 2002 (ACT)).
In my view the evidentiary onus was discharged by the accused. The position of the gun in the motor vehicle, the accused’s evidence and the possibility of secondary transfer of his DNA, combined to raise as a reasonable possibility that the accused was unaware of the presence of the gun.
Thus the onus shifted back to the prosecution to prove the knowledge beyond reasonable doubt. The Crown said this had been achieved by the position of the gun in the vehicle, making it clear that it would have been seen by the accused, his DNA profile on the gun and the implausibility of the accused’s version.
The Crown made the telling point that if the DNA was transferred from the plastic bag to the gun, as suggested by the accused, it must have been in a position where contact could take place and therefore in a position where it was plainly visible to the accused when he put the plastic bag in the vehicle.
The credit of the accused was squarely placed in issue. The Crown pointed out, as an example of his lack of credit, the passage of evidence which I have quoted above concerning where he was travelling to when the accident occurred. Counsel for the accused had no real answer to the illogicality of this evidence but pointed out that it was open to me to reject that part of his evidence but accept other parts.
As a general statement I did not think the accused was an overtly dishonest witness. Although there was some confusion about the manner in which he placed the plastic bag in the vehicle I did not think this confusion demonstrated any specific unreliability in his evidence. I was however concerned about the passage of evidence I have just referred to because of its possible effect on other aspects of his testimony.
On reflection however I do not think his answers on this point are of great significance. It is correct that his credit overall may be influenced, however when one examines the evidence it is difficult to see how the fact that he was travelling to Ms Bremner’s residence has any effect on the issues in the case. Ultimately I do have some reservations about the accused’s evidence but not to the extent that I reject the whole of it.
Turning then to whether the Crown has established that the accused knew of the presence of the gun beyond reasonable doubt, I think the following matters are of primary significance:
(a)There is no evidence that the gun was in any way fixed to the position in which it was found when seen by Senior Constable McVicar.
(b)The vehicle struck the traffic light at between 60 and 80 km/h raising a reasonable possibility that the gun moved following the collision.
(c)It cannot be said beyond reasonable doubt that the gun was in the position that it was found following the accident.
(d)Mr Preston accepted the possibility of secondary transfer which could have occurred with contact between the gun and the accused’s plastic bag.
(e)This contact could have occurred at any time during the journey and not necessarily when, as the Crown postulated, the bag was placed on top of the gun. It is equally likely to have occurred when the bag and/or the gun came into contact with each other as a result of the collision.
(f)The portion of the gun protruding between the seat and the front passenger door, on the assumption it was in that position before the collision, would not have been visible to a person accessing the rear of the vehicle (from the driver’s side) or sitting in the driver’s seat.
(g)The inaccessibility through the passenger doors (front and back) is consistent with the evidence of Ms Bremner concerning the internal locking of those doors because the central locking system was inoperative.
(h)The vehicle was capable of being accessed by other persons and was frequently located outside a house in which other persons possessing guns were sometime visitors.
(i)The accused’s evidence that he had no knowledge of the gun was open for acceptance by me. Although there were elements of his evidence that raise credit issues, as I said above, I do not reject the whole of his evidence.
The result of the matters I have set out in the preceding paragraph inevitably lead me to the conclusion that the Crown has not proved its case beyond reasonable doubt. In particular I am not satisfied, on this standard, that the accused knew of the presence of the gun in the motor vehicle.
Accordingly the accused is entitled to a finding of Not Guilty of the offence.
Turning now to the summary offence which was transferred from the Magistrates Court, counsel for the accused said that none of the facts alleged against her client were contested. On this basis I am satisfied beyond reasonable doubt of the following:
(a)The accused was in possession of a bayonet on 20 September 2015.
(b)The bayonet had been stolen and was in the unlawful possession of the accused.
The accused is therefore found guilty of the related summary offence of unauthorised possession of stolen property in contravention of s 324(1) of the Criminal Code 2002 (ACT).
Orders
I make the following orders:
(i)The accused is found not guilty of the offence of possessing a prohibited firearm whilst unauthorised.
(ii)The accused is found guilty of the related summary offence of unauthorised possession of stolen property in contravention of s 324(1) of the Criminal Code 2002 (ACT).
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date:17 November 2016 |